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Tuesday, December 29, 2015

Safeguarding US Documents

For John, BLUFSloppy is as bad as malevolent when you are the US Secretary of State.  Nothing to see here; just move along.

The question before us is if Former Secretary of State Hillary Clinton has disqualified herself from the Presidency under Section 2071 of US Law, which calls for the protection of records.

The title of this paper is "Who Can Be President of the United States?:  Candidate Hillary Clinton and the Problem of Statutory Qualifications".  The author is Mr Seth Barrett Tillman, who is a Lecturer, Maynooth University Department of Law, Ireland.  Who but an Irishman would bring up such an issue in order to have a 20 page go at it?

Here is the start of the paper and laying out of the issue:

It has been alleged that, during her term of service as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping.  Section 2071 of Title 18 of the United States Code provides:
Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.
Section 2071’s language poses two interesting interpretive challenges.

First, what is the scope of the statute?  In other words, does Section 2071’s generally worded “office under the United States” language extend to the presidency?

Second, if Section 2071’s general “office under the United States” language fairly encompasses the presidency, is the statute constitutional?  In other words, does Congress have the power to create additional qualifications for the presidency beyond those already expressly stated in the Constitution’s text?

There may still be those benighted individuals who believe Ms Clinton did not violate Section 2071.  Bless their little hearts.  But, to write his paper, Mr Tillman has to ask the question.  And in doing so he is writing for the ages and not with regard to Hunny Bunny alone.  And, we know, in our hearts, that she was not careful of her official papers, sort of like Sandy Berger, who was the United States National Security Advisor for President Bill Clinton. Through a thicket of footnotes and a lot of examination the writer comes to a conclusion.  As a note in understanding, "the rider on the Clapham omnibus" is the legal way of saying the average man (or woman).  And, it has been used in literature.  For example, G K Chesterton.

The concluding paragraph:

Does Section 2071’s “office under the United States” language apply to the presidency?  I expect the rider on the Clapham omnibus thinks so, as do others from more rarefied academic and judicial circles.  But historical materials and established principles of statutory interpretation cut the other way.
Hillary is home free.

Hat tip to the InstaPundit.

Regards  —  Cliff


Seth Barrett Tillman said...

I am not Irish, not that there is anything wrong with being Irish. I just live in Ireland.


C R Krieger said...


Well, at least one day a year we are all Irish.

I do admit I made a big presumptuous calling you Irish.  I admit that the "John" mentioned at the beginning of the blog is of Irish heritage and was playing to that.  I apologize.

As a lay person I liked your lay down of the arguments.  I am not a fan of Ms Clinton, but fair is fair.

Regards  —  Cliff